from the bad-ideas:-threatening-larry-lessig-with-a-copyright-infringement-lawsuit dept

If you read Techdirt, you're almost certainly familiar with Larry Lessig, the law professor at Harvard who (among many other things) has been an avid advocate for copyright reform and campaign finance reform, an author of many books about copyright and creativity, a well-known public speaker whose presentations are stunningly compelling, entertaining and informative, and the founder of some important organizations including Creative Commons. Of course, as an expert on copyright and creativity, and someone who's actually been involved in some of the key copyright legal fights over the past decade (tragically, on the losing side), you might think that a record label would think twice before issuing a clearly bogus threat to sue him over copyright infringement. Well, apparently Liberation Music was either unaware of Lessig's reputation and knowledge, or just didn't care.

Apparently, back in 2010, Lessig gave one of his many wonderful public talks, this one called "Open," at a Creative Commons event in South Korea. While that happened a few years ago, Lessig just put video of that talk online a few months ago. In that video, which is now down (for reasons explained below), there are a few brief clips of the Phoenix song Lisztomania, which was quite popular a few years ago. When the clip was posted, it appears that YouTube's ContentID noted two possible claims: one from Viacom and one from Liberation Music, though, oddly, Lessig was only informed about the Viacom one. Lessig disputed the Viacom block, but as YouTube was about to restore the video, Liberation Music took it one step further, and filed a full DMCA claim, demanding the video be taken down and kept offline (while many people confuse them, the ContentID match is not the same thing as a DMCA claim -- without getting into the details, the DMCA claim is a bit more serious).

In response, Lessig did exactly what the law allows, and filed a DMCA counter-notice, claiming that the work did not infringe. In response, Liberation emailed Lessig directly telling him that it would be filing a copyright infringement lawsuit against him in 72 hours if he did not "retract" his counter-notice. To avoid having an immediate lawsuit on his hands, Lessig retracted the notice, but since then has teamed up with the EFF to file for declaratory judgment that the video does not infringe and (more importantly) to seek DMCA 512(f) damages against Liberation for filing a totally bogus DMCA takedown notice.

There are a few things worth digging into here. For example, this is not the first time that Lessig has had videos removed from YouTube on highly questionable copyright claims. In fact, we've written about it happening twice before. However, I'm pretty sure that, in both cases, after Lessig countered the claims, the videos were restored. In both cases, it really looked like part of an automatic takedown, where the companies later realized there was nothing worth pursuing. What's different (and stunning) here is that Liberation decided to press forward with the obviously bogus claim, file the DMCA notice and threaten to sue if Lessig didn't drop his counternotice.

Next, in terms of the content of the video itself, while the YouTube video is gone because of the DMCA takedown, I'm pretty sure there's another copy here. The Lisztomania clips come in around the 37:50 mark. I wasn't able to fast forward to it, but Lessig has used it in other presentations as well. For example, you can see it in a TEDx presentation that Lessig did a few months earlier, with the key section of that video happening at 4:40 in that video. And what he's showing, actually, is not something that Lessig himself put together, but rather clips from a video that Julian Sanchez had put together -- a video we've written about a few times.

That's because it's a truly fantastic video that Sanchez put together in February of 2010, highlighting how copying was a key part of culture, using a really compelling example: First, there was a mashup video uploaded to YouTube by a user called "avoidant consumer," which mashed up the song Lisztomania by the band Phoenix, with a bunch of (mostly dance) scenes from a variety of John Hughes movies, leading with the classic Breakfast Club. The video is pretty good in a variety of ways. The music is catchy, the film scenes are classic (especially for people who grew up in the 80s), and (most importantly), the video and the music just fit together. I remember that video getting passed around like crazy. The whole thing became a meme.

Part of that meme, as highlighted by Sanchez, was that people of certain "tribes," who really liked that video then created their own versions, starting with a crew of hipsters in Brooklyn, followed quickly by some hipsters in San Francisco, and later by people all over the world. Those later videos no longer used the original John Hughes clips, but rather recreated the same clips within their own environments in a very fun way. Sanchez spoke about this form of culture and community and how the nature of this remix helped to build that community, and how our copyright policy rarely reflects that aspect.

Of course, late last year, Sanchez discovered that his own video had been removed by a copyright claim by Kobalt Music and Sony Music. He appealed, and it was rejected... but after the story got some attention, the clip was put back. If I remember correctly, the video was taken down yet again just a few months ago, but was put back soon after.

Meanwhile, soon after Sanchez put out the video, Lessig used Sanchez's video, again to highlight the power of remix and remix culture. In the South Korea presentation, Lessig is no longer using the same Sanchez video, and has actually expanded upon what Sanchez started, by including a variety of other cities the meme spread to. However, in almost every way, these are all clearly fair use. I'm assuming the Viacom ContentID match that Lessig first received was because of the use of some of the video clips in Lessig's presentation, including (perhaps) one of the John Hughes clips that very briefly show up (the video also includes a Daily Show clip, which Viacom owns -- so it could be about that). The audio claim by Liberation, however, is about the Phoenix audio. Given that, it would be almost impossible to see this as infringing.

While I may be predisposed towards seeing fair use more readily than some others, I'd be curious if any copyright maximalist can come up with a credible argument for how this isn't fair use. It involved some very brief clips used to illustrate a concept, including commentary from Lessig (talking over the clips). It wasn't for any commercial purpose, but for education. There is no way that it harmed the market for the Lisztomania song. If anything, it potentially increased interest in the song. I can't see how Liberation Music has any case at all. At all.

Of course, the really interesting part of this might not be the declaratory judgment claim for non-infringement (where the fair use stuff will play out), but rather the second claim -- for attorneys fees, costs and damages under 512(f). As we've discussed, unfortunately, it's been almost impossible to win a 512(f) claim over a bogus DMCA takedown. The entertainment industry has fought hard to make sure that sending totally bogus DMCA notices that censor content are basically unpunishable, unless they can show a willful and intentional decision to ignore fair use and censor the content. While it's not a slam dunk, it certainly appears that Lessig has a much stronger 512(f) argument here than other cases, because this isn't a one-time situation, but Liberation doubled down even after being told that Lessig believed the video was fair use. On top of that, by filing the lawsuit himself, and seeking the declaratory judgment, instead of being sued first, it means that Liberation can't just dismiss the lawsuit (they're now the defendant, not the plaintiff).

Given that it's Lessig, and with the involvement of the EFF, this is obviously going to be a case worth watching, but given the full details of the case, it may be a key one in establishing when 512(f) can be used to push back against bogus DMCA takedowns.

On top of that, by filing the lawsuit himself, and seeking the declaratory judgment, instead of being sued first, it means that Liberation can't just dismiss the lawsuit (they're now the defendant, not the plaintiff).

and

Given that it's Lessig, and with the involvement of the EFF, this was obviously going to be a case worth watching, but given the full details of the case, it may be a key one in establishing when 512(f) can be used to push back against bogus DMCA takedowns.

I'm figuring this was on purpose and I dare say they were waiting for the opportunity to fire. You just have to wait and the greedy, money hungry bastards will eventually give you enough rope to hang them. Epic win!

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If that is a fact, I wager it's because your posts are spam. All you do is complain that he censors you and chant Y U NO DEBATE ME. Stop whining like a petulant child and make substantive posts, and you may find yourself unfiltered.

I'm here now ready to discuss the merits of Lessig's claims. Yet, my posts are still being routed to the spam filter and I have to use a proxy to post in real time. I'd rather not be talking about this stuff either, but the fact is that Mike is still intentionally routing my posts to the spam filter.

as it appears that the judges who sit on these type of cases have little if any knowledge of the Internet, and the usual outcome is in favour of whoever has filed the takedown, regardless of ownership or authenticity, i dont relish his chances. add in that the entertainment industries will be waiting at the ready in the wings to throw their 2 dollars worth in, if there is the slightest hint that Lessig is going to win, the odds are again against him and that is without yet any money changing hands between industries and court officials! it is definitely a case that needs to be fought out. Lessig should win and he should be awarded any and all costs plus compensation. the trouble is, it could then set a precedent whereby the hundreds or thousands of takedowns issued every year would have to be a lot more legitimate and genuine than those issued up to now. once there is compensation in the offing for false takedowns and abuse, the game is going to change completely. having said that, it is how it should have been all along. it was Congress fault, for obvious reasons, that it has been a one way street all the time. that has been both unfair and ridiculous but when your job relies on financing from a particular quarter, the choice of what to do is pretty obvious. the abuse that has happened since that part was purposefully left out of the law is frightening

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add in that the entertainment industries will be waiting at the ready in the wings to throw their 2 dollars worth in, if there is the slightest hint that Lessig is going to win, the odds are again against him and that is without yet any money changing hands between industries and court officials!

I'm sorry, but all I can think of when I hear of "entertainment industries", "2 dollars" and anything to do with the copyright cartel is this:

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Liberation music is distributed by Universal, making it 100 % sure that RIAA has to put in a good word or 2 in this case.

There is the chance of RIAA not bothering with pleading too hard for a result. The personal email is very unusual and would make a similar situation very unlikely. Either way, if they can keep the judge from making too broad formulations about the use of 512(f) they may even accept the loss to later point and say that 512(f) is working perfectly and people claiming it is almost impossible to win such a case are tinfoil-hats, communists and whatever derogatory name-calling they can come up with (tinfoil-hat is qua NSAs programs trendy and communism is an accepted ideology outside certain bigotry heavy circles).

Hmm, you hand a stick to "censors" when use their content.

Even if ruled "fair use", because does have someone else's content it cannot be "a totally bogus DMCA takedown notice", just disagreement over the extent that's "fair", so that's almost certainly going to fail.

Re: Re: Hmm, you hand a stick to "censors" when use their content.

It's not a matter of understanding. They simply refuse to accept fair use as a valid concept, regardless of its legal establishment and precedent. One of the reasons (among a long,long list of reasons) I no longer accept copyright as a valid concept, no matter how many rules they pay Congress to pass.

Re: Re: Re: Hmm, you hand a stick to "censors" when use their content.

anon, i believe you are richtig about this...

i *used* to be a real PITA, goody-two-shoes about copyright and pirating software, used to hector the companies i worked for about using unlicensed software, etc...

*NOW* ? ? ?

since the whole schmear has been TOTALLY slanted to the benefit of uber-korporations, AND -as you say- they ARE trying to eliminate -or prevent, in other countries- the consideration of 'fair use' in any way, shape, or form, i have ZERO RESPECT for THEIR use/definition of copyrights, etc...

in short, fuck'em: they don't respect us and our valid uses of OUR CULTURE; okay, i don't respect you and your captured laws...

i don't pirate myself, but i no longer have any beef against any one who does, whether 'principled' or not, i simply don't care: The They care not one whit about being principled, so they will get the same back at them...

the fact remains, the power equation is VASTLY unbalanced such that The They have all the 'rights' and 'laws' on their side, and we get the shit end of the stick, no matter 'fair use' or not...

Re: Re: Re: Re: Hmm, you hand a stick to "censors" when use their content.

It always *was* slanted to the benefit of uber corporations. From the very beginning. Copyright law was originally created so that inventors/creators of original {or purchased} content could hold a temporary monopoly {yes that was the word used} over that content in order to make more money off it. The idea, they claimed, was to give them more resources to develop it, but that is bullshit. People have been inventing and creating things since long before copyright law existed and they will continue to do so if and when these laws are finally done away with. They have stifled innovation from the very beginning and it has never been about more than money grubbing.

Re: Hmm, you hand a stick to "censors" when use their content.

Re: Hmm, you hand a stick to "censors" when use their content.

The fair use nature has been tested in the court of opinion. In previous cases, the copyright holders refused to push the content of the web or go to court over it. But now, despite declarations of fair use, this specific video which has "two-step" removal from the market (the mash-up is a first step transformative use, its use commentating on the mash-up itself provides a second step, a layer of fair use on top of the first) is infringing? Courts have, when they are allowed to make such decisions, consistently held that even if the first use is infringing, the need to make minimal use of the content to comment on that first use becomes clear fair use.

By targeting this specific use, and not earlier uses which were closer to the infringed market, Lisztomania undermines its own case. what about this video brings it back around to infringing, when if anything this use is further away from infringement then the use being talked about?

This use holds 3 specific fair use claims. Education, Commentary, and is more transformative then earlier uses (which are not being disputed as infringing). More over De minimus claims may also apply.

By your logic, nothing can ever be fair use except as decided by a court. However, the law as written and case law establish many clear guidelines to define fair use. You yourself once claimed that a '7 second' sample was clear fair use, despite the fact that a court needed to rule that. Using previous court opinions, and the actions of the copyright holder, this is a clear case of what the court rule as Fair Use.

Re: Hmm, you hand a stick to "censors" when use their content.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work ... is not an infringement of copyright.

A fair use is not infringement. A DMCA notice which claims infringement where there is not infringement is, de facto, bogus.
I know you like to dismiss fair use as some sneaky trick that gets people off the hook when they infringe a copyright (for reference: this post, where you did that). But that claim is backwards: if the use is fair, there is no infringement of which to be excused.

Re: Hmm, you hand a stick to "censors" when use their content.

'Even if ruled "fair use", because does have someone else's content it cannot be "a totally bogus DMCA takedown notice", just disagreement over the extent that's "fair", so that's almost certainly going to fail.'

Well, obviously the case would be a slam dunk if they didn't have the copyright or something. But they ARE required to consider fair use when sending takedowns. And his fair use case is very strong since the use is noncommercial and does not impact the market for the original.

I think a lot depends on whether Liberation Music can articulate a reasonable claim as to why it is NOT fair use. If they cannot do so, they will be paying fees. If they can come up with something reasonable, they won't be paying fees but the injunction will still likely be granted.

"But perhaps the goal was to attract a lawsuit for a precedent!"

You think that was the goal of giving the lecture and posting the video? That would be a pretty inefficient way of doing things. He didn't sue until after he was specifically told a lawsuit was imminent.

"As I've been trying to get across: to avoid these situations, just don't use someone else's content."

That makes about as much sense as saying: if the singer wants to avoid the situation where their song gets copied, they should just not create content. Yes, it avoids the situation, but it involves not doing something they have every right to do.

Re: Hmm, you hand a stick to "censors" when use their content.

"As I've been trying to get across: to avoid these situations, just don't use someone else's content."

Well then that's ThatGuyWithTheGlasses.com and all other Youtube reviewers and abridged series shut down, then. Happy that you've now shut down very valuable free speech that has brought entertainment to MILLIONS?

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Time and again i see these comments. You mention it is a dispute over what's fair, so let me ask you, what is 'their' content? Am i never allowed to create a character that can run really fast because DC has flash? Am i to respect a total ban on the word 'superhero' because someone decided only they are allowed to use that term? is it forbidden to discuss a companies new video game offering in a vlog because im not paying licence fees?

Re: Another possible claim?

In legal land, what they did is announce that they disagreed with the counter notice and intended to move forward with the process. It is not dissimilar from making that announcement by actually filing a suit and is probably seen as restrained. They can easily claim they were saving both parties time and money by informing Mr. Lassig directly. Its not 'Blackmail' or 'Coersion' by the criteria of the court.

Re: Re: Another possible claim?

It certainly can be because the copyright claim has basically a 0% chance of succeeding. To the average person, the thought of standing up for yourself in court can mean very large numbers in money terms.

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Its not 'Blackmail' or 'Coersion' by the criteria of the court.

Perhaps not, but there are all sorts of blackmail and coercion (I would use the term "extortion") that courts fail to officially recognize as such. That doesn't mean they aren't extortion out here in the real world.

Re: Re: Re: Another possible claim?

But the question was about actionable legal claims. By your definition, "Pay your phone bill or we disconnect it" is extortion. They stated that they believed their copyright is being infringed and they would take appropriate legal action. Its no less then they would have to do in any lawsuit case.

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By your definition, "Pay your phone bill or we disconnect it" is extortion.

Of course it isn't. Don't put words in my mouth.

This is nothing like that anyway. It would be more like if the phone company sent me a bill because I used their name in public, talked about their service, and they threatened to sue to me if I didn't pay up.

Payola vs Infringement

I still don't get this industry. When Lessig and others use content they create value for the owner. Back in the 70s when radio played music, promotion was so important the whole payola issue was the going legal concern.

A similar example is when google indexes materials so that people may become aware of copyrighted materials giving the copyright owner a market. Again, there's been fights about whether Google is infringing or helping.

When does promotion turn to infringement?

I understand the owner should have a say. But fair use should require that the owner show real damages -- and as such, having the benefit of material becoming a meme is hardly a damage is it?

While I may be predisposed towards seeing fair use more readily than some others, I'd be curious if any copyright maximalist can come up with a credible argument for how this isn't fair use.

Ha! That's funny. You don't want maximalist to chime in, or else you wouldn't be routing my posts to the spam filter (all the while lying and pretending like you have no idea why my posts are going there). Will you even post this response? I doubt it. I'm happy to debate this with you, but you have to stop blocking my posts first. Deal?

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Hey, I'm glad you posted it! But you're still routing all posts that come from my home computer to your spam filter. Why are you still doing this? I don't understand why you pretend to be open to dissenting views when you clearly are purposefully routing my posts to your spam filter. Any chance you could honestly address this? It's one thing to pluck my posts from the spam and permit them to be posted, but I have serious doubts that you can honestly admit to everyone that you're purposefully routing my posts there. Prove me wrong?

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Liar.

You claim censorship. Yet, here is your post, that I just finished reading and am now responding to.

AJ, no one believed your censorship claim before. And they're not going to start magically believing it now. The truth of the matter is you're able to post comments here whenever you choose. You're just not able to post abusive crap like you prefer. That stuff is (rightfully) caught by the spam filter.

When you grow up, you'll find folks here more likely to converse with you.

I'm using a proxy so I can respond to you. Mike is intentionally routing all of my posts to the spam filter. That's a fact. It's trivially easy to get around his filter, as I'm doing now. But the fact remains that posts from my home computer are all routed to the spam filter. I'd love for Mike to honestly discuss this with me, but I doubt he ever will. Sadly, he appears unable to be that honest. I don't know why, but that's the way he is.

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If that is a fact, I wager it's because your posts are spam. All you do is complain that he censors you and chant Y U NO DEBATE ME. Stop whining like a petulant child and make substantive posts, and you may find yourself unfiltered.

You know, it's funny that you said "censorship" because I did not. But the fact is that what Mike's doing to me is a quintessential example of censorship. My posts have to be approved by a censor before they are permitted to be published. It's just like having to submit a book or a movie to a censor for approval before being able to offer it to the public. That some of my posts are approved by the censor doesn't change the fact that it's censorship. Thanks for bringing it up.

Mike, wouldn't you rather I discuss things that matter, like the merits of Lessig's claims, rather than talk about how you're still censoring me? I would.

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I for one have never seen Mike talk/write about censoring you. I have seen lots of posts where you talk/write that you are being censored.

Maybe it's not a spam filter that's blocking your posts. It must be the new "this guy is a horrid a**hole that demands we pay attention to him even though he never actually says anything worthy of discussion" filter.

Since we see so many of your posts, I must assume that the new filter is not working properly, and that is something that I certainly would like some one here to fix.

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Call me cynical, but I bet if he wins a new, worse law will be put in place. After all, the guy used someone else's intellectual property, they tried to remove it, and he gets money.
Never mind fair use.

Hmm, you hand a stick to "censors" when use their content.

Surely Lessig doesn't go round preaching to the world for free. I suspect he was paid handsomely for his "lecture" and therefore there was an element of commercial use as it's part of his business. On that view it seems an unfair dealing and should've been licensed. In any event he had no option but to claim fair use.The questions should be framed: Is the claimed work subject to copyright? (yes). Has there been an infringement? (yes). does that infringement fall within one of the fair use defenses? (Maybe) If so, it is not an infringement.

Lessig's concept of creativity and the need for it to be at the expense of others is childish claim. His simplistic argument is merely that anyone with cut and paste ability should be allowed to freely use other people's work to make more digital junk and clutter. Lessig's argument successfully takes the meaning out of artistic creativity and replaces it with some kind of moronic drivel. Personally, the video mashup is not only unoriginal but borders on crass. At least parody adds something original.

I don't believe his hyped-up and PR practiced diatribes any more and I also don't take his version of the law as the end story. I just hope the sitting judge is not intimidated by Lessig's bloated view with credentials.

What is notable about the copyleft movement is that few if any of commentators are entertainers or artists themselves. If they are, or were artists, they certainly don't speak on behalf of the majority of artists. From all the comments I've read none display any insight into how difficult the entertainment business is. There is no understanding of the depth and breadth of the industry needless to say the intricacies. To say we can just go out and do more live gigs as some kind of compensation for diminished royalties is just plain ignorant. There are many more entertainers than just the Gagas of the world and some of the older entertainers rely entirely on now minimal royalties for their superannuation or pension.